Dallas Bar Association
HEADNOTES Focus Appellate Law/Trial Skills
April 2017 Volume 42 Number 4
Thank You Mock Trial Judges
Creekview High School, of Carrollton, won the State High School Mock Trial Championship. Dallas Bar Association members presided over and served as “jurors” for the final competition on March 4. From left to right are: (back row) Hon. Lana Myers, Steve Russell, Tramaine Tinner, Angelina LaPenotiere, Prater Monning, and Tom Goranson. (Front row) Gaylynn Gee, Barbara Palaez, Dena Stroh, DBA President Rob Crain, Stacie McNulty, and Jim Young.
Focus
Appellate Law/Trial Skills
Using Videotaped Depositions at Trial BY BRITTA STANTON AND PAT DISBENNETT
Reading depositions at trial is tedious—and boring. A great way to avoid the ridiculous scene of lawyers asking each other questions and play-acting answers is to use videotape. But there are several rule-based, as well as practical considerations, which should guide effective use of videotape.
When Can You Use a Deposition Video at Trial? Deposition video clips are evidence, and, therefore, must be admissible like any other evidence. That means each clip of testimony must contain admissible Q&A, and that the deposition video itself also must be admissible. Texas state and federal courts treat these threshold issues of admissibility differently. In Texas state court, a deposition may be used for any purpose in the same proceeding in which it was taken. Tex. R. Civ. P. 203.6. And as long as the deposition is taken in the same proceeding, the deposition is not considered hearsay under the Texas Rule of Evidence 801(e)(3). In short, you can generally use deposition videos interchangeably with live testimony in Texas state court. Federal courts, on the other hand, disfavor deposition videos as a substitute for live testimony. This policy is manifested in Federal Rule of Civil Procedure 32, which limits the use of deposition clips to situations that mirror the hearsay exceptions, including: (i) impeachment; (ii) the deponent is a party-opponent; (iii) the deponent
is unavailable at trial; or (iv) other “exceptional circumstances.” Fed. R. Civ. P. 32.
How Can You Use Deposition Video Clips During Trial? A second issue to consider is the manner in which deposition video clips may be presented. For example, can you play your favorite clips in your preferred order, or must you intermix unfavorable clips or play them chronologically? If the plaintiff plays clips during its case-in-chief, does the defendant get to play a counter video or must it wait until its case-in-chief? Under both state and federal rules, these questions are largely left to the discretion of the trial court pursuant to its authority to control the mode and order of trial. See Tex. R. Evid. 611; Fed. R. Evid. 611(a). Consequently, advocates have room to argue their preferred presentations, for which the following rules and authorities may be helpful. The rule of optional completeness is a significant tool (or hurdle) to persuade either a federal or state court of your position. See Tex. R. Evid. 107; Fed. R. Civ. P. 32(a)(6). You can use this rule to argue against a misleading or confusing presentation by your opposition, and then interject your own clips immediately to explain or give context to the initial clip. This is an effective way of interrupting your opposition’s flow. But caution: while the rule may allow you to interject your clips into
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Transforming American Democracy Keynote Speaker Hon. Tonya Parker Law Day is a national day set aside the judiciary, featuring keynote on May 1 of every year to celebrate speaker the Honorable Tonya the rule of law. In 1957, the American Parker, Judge of the 116th Judicial Bar Association (ABA) envisioned a District Court of Texas. special day for celebrating Judge Parker has our legal system and it was twice been elected by further established by Presher judicial colleagues ident Dwight D. Eisenas the Presiding Judge hower. This annual day for the Dallas County was created to strengthen Civil District Courts (a our great heritage of libposition she currently holds). She has served erty, justice, and equality as the president of the under law. Texas Association of This year’s Law Day District Judges, and is a theme is: The 14th member of the Ameriamendment: Transformcan Law Institute, an ing American Democracy. Hon. Tonya Parker organization of jurists There are four sections to the 14th amendment of the U.S. who work to clarify, improve, and Constitution. In celebrating Law Day, otherwise modernize the law. Judge Parker serves with distincthe most relevant sections of the 14th amendment is the first section and the tion, and she is recognized at the local, state and national levels for fifth section. The first section states: All per- her contributions. In 2015, the Dalsons born or naturalized in the United las Chapter of the American Board States, and subject to the jurisdiction of Trial Advocates named Judge thereof, are citizens of the United Parker Trial Judge of the Year. The States and of the state wherein they State Bar of Texas African-Amerireside. No state shall make or enforce can Lawyers Section honored her any law which shall abridge the privi- with its Distinguished Jurist Award. leges or immunities of citizens of the She has also been awarded the United States; nor shall any state Honorable L.A. Bedford Outstanddeprive any person of life, liberty, or ing Jurist Award and the Honorable property, without due process of law; Sam A. Lindsay Award for Profesnor deny to any person within its sionalism and Ethics—both awards jurisdiction the equal protection of from the J.L. Turner Legal Associathe laws. The fifth section states: The tion. In February 2017, the SOGI Congress shall have power to enforce, Commission of the American Bar by appropriate legislation, the provi- Association awarded Judge Parker one of its prestigious Stonewall sions of this article. Through its Citizenship, Due Pro- Awards. Outside the legal arena, Judge cess and Equal Protection clauses, this transformative amendment advanced Parker is a devoted community serthe rights of all Americans. It also vant. She is a regular volunteer with played a pivotal role in extending Ignite, a non-partisan organization the reach of the Bill of Rights to the aimed at building political ambistates. Ratified during Reconstruc- tion in and training young women tion a century and a half ago, the 14th (ages 14-22) to run for public office. Amendment serves as the cornerstone Throughout her career, she has served of landmark civil rights legislation, on numerous legal and civic boards and the foundation for numerous federal commissions, including as chairperson court decisions protecting fundamen- of the Dallas Arts District Alliance’s tal rights, and a source of inspiration Board of Directors, commissioner on for all those who advocate for equal the City of Dallas Community Development Commission, at-large director justice under law. Since 1866, it has been illegal in for the Dallas Bar Association Board, the U.S. to discriminate in jobs and a two-term board member for the J.L. housing on the basis of race. How- Turner Legal Association, and a threeever, federal penalties were not pro- term advisory board member for the vided for, so remedies were left to the Dallas Women Lawyers Association. The luncheon begins at noon individuals involved. Since the latter half of the 20th century and pas- on Friday, May 5, 2017, at the Belo sage of related civil rights legislation, Mansion. Doors open at 11:45 a.m. there have been an increasing num- For tickets or more information, ber of remedies provided under this contact Liz Hayden at lhayden@ act, including the landmark Jones v. dallasbar.org or (214) 220-7474. Mayer and Sullivan v. Little Hunting Reservations are available online at www.dallasbar.org. HN Park, Inc. decisions in 1968. This year, the Dallas Bar Association will continue its tradi- Kathy Roux, of Law Office of Kathy E. Roux, is a tion of celebrating Law Day with a Publications Committee member and can be reached luncheon on May 5, 2017, honoring at kathy@kathyrouxlaw.com.
Inside 9 When Must a Prevailing Party Cross-Appeal?
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